Webster Mulemena v FQMO Roads Division (COMP NO. IRD/SL/42/2015) [2017] ZMIC 17 (22 September 2017)

IN THE HIGH COURT FOR ZAMBIA COMP NO. IRD/SL/42/2015 INDUSYRIAL/LABOUR DIVISION HOLDEN AT SOLWEZI (LABOUR JURISDICTION) BETWEEN: i ., .. ' ,, ' ' . • f , . •: I • I ; I •• ",• . l,J t •:; WEBSTER MULEMENA COMPLAINANT AND FQMO ROADS DIVISION RESPONDENT Before: The Honourable Mr. Justice D. Mulenga this 22nd day of September, 2017. For the Applicant Mr. J .:rvr. Kato lo of Messrs IVlilner Katolo & Associates For the Respondent Mrs P. M. Kapaipi of Messrs Abha Patel & Associates JUDGMENT Case referred to: 1. Wilson Masautso Zulu v Avondale House Project (1982) Z R 172 2. Zesco v David Lubasi Muyambango (2006) Z R 22 3. National Breweries v Phillip Mwenya (2002) ZR 118 4. Zambia National Provident Fund v Chlrwa (1986) ZR 70 5. ANZ Grindlays bank (Z) Limited v Kaona (1995/1997) ZR 88 J1 I I I I . I I I I I I I I I I I I I I I I I I I ! l I I l Other Works referred to: 1. Selwyn's Law of Employment 15th Edition at page 394 The Complainant herein upon obtaining Leave of the Court through the Ruling of the Court dated 13 th May, 2015, presented his Notice of Complaint supported by an affidavit, on 15 th June, 2015. The grounds of the Complainant's Co111plaint are couched in form of the back ground to the dispute herein, the same are as herein stated. The Con1plainant was employed as a Storeman by the Respondent on 28 th November, 2010, under Road Division, but was later moved to Mining Division, in the aforesaid capacity. On 29 th November, 2011, the Complainant was instructed to report to the Road Division by one Mr. Jan Boshoff and Mr. Jaines. On 30th January, 2012, the Complainant did not receive his monthly salary through his Bank account, the said pr01npted him to see the Respondent's Human Resources 1nanager, one Boniface Mutun1bwe. The said Human Resources manager called for a meeting and gave instructions that the Complainant be paid his salary through the Ndola Head Office. On 2nd February, 2012, the Human Resources Officer, one Shelly, then told the Complainant to stop reporting for work and after enquiring as to the reason why, Complainant was told that he was on suspension pending a letter. After several follow-ups as to the reason of the J2 I I I I I I I I I I Con1plainant's suspension pending a fonnal letter to that effect, did not yield results, therefore, Complainant reported the n1atter to Labour Office on 11 th August, 2014, for legal redress. The Complainant beca1ne aware of the dismissal when he presented a co1nplaint at Labour Office in 2014. There was at Labour Office, a letter of dis1nissal against him from the Respondent, dated 8 th January, 2012. That in arriving at the said dismissal, the Complainant was never accorded an opportunity to be heard as to the reason he was allegedly absent from work without permission, further that the Co1nplainant was never served with a letter of dismissal. The Con1plainant was never charged nor given any opportunity to be heard on the allegations of desertion from work, before he was dismissed. The C0111plainant contended that he never deserted work, but had travelled to Ndola to collect his salary with full knowledge of supervisors. The Complainant, for reasons aforesaid seek the fallowing relief: (a) An Order of Reinstatement (b) Further and in the alternative an Order that his dismissal was wrongful (c) Damages for wrongful dismissal calculated at the rate of 24 months salary (d)Payment of monthly salary from the tin1e Complainant was placed on suspension fron1 2nd February, 2012 up to the tin1e the Cmnplainant became aware of the dismissal letter on 11th Augus.t, 2014. J3 I I ·1 I I I I I I I I I I I I I I I I I I I I I I I I I I I (e) Interest (f) Aiviy relief the Court may dee1n fit. (g) Costs. The Complainant by his affidavit in support of the Notice of Complaint disposes that on 2nd February, 2012 he was told verbally by the Human Resources Officer, nainely Shelly, to stop reporting for work as he was under suspension, pending a letter to that effect, however the same never came. The Cmnplainant deposes that when he saw and after personal follow ups, the suspension letter was not being served on him by the Respondent, he reported the matter at the Labour Office. The Complainant was surprised to find that the Labour Office had been served a copy of a letter of his dismissal form employment dated 8th January, 2012 by the Respondent. The letter of termination of employment is exhibit "WM/1". Cmnplainant, contends that the said letter of dismissal was never served on him personally. I I I I I I I I The Complainant deposes that he was not accorded an opportunity to be • · heard concerning the allegation of desertion from work neither was he formally charged, therefore, the Con1plainant pleads that the Respondent breached the rules of natural justice. The Respondent opposes the complaint and to that effect filed an Answer and affidavit in support on 17th May, 2017, denying the Complainant's avennents. The Respondent through an affidavit in support of Answer sworn by one Sophie Peach, the Human Resources Officer of the Respondent Company, deposes that the Con1plainant between December, 2011 and January, 2012 was te1nporary sent ho1ne by his supervisor one Jan Boshoff for poor performance. It was for the said temporary sending off of the Complainant that resulted in non-payment of the salary for January, 2012. However, Respondent deposes that on Lodging a complaint to the Human Resources Manager, Boniface Mutumbwe, a meeting was convened on 3pt January, 2012 whereby it was resolved that the Complainant be paid his January, 2012 salary and be transferred back to the security section where he was earlier based. The Respondent deposes that on 2nd February, 2012 the Complainant reported for work and he was advised by the Human Resources Officer Shelly Musonda to wait at the bay for further instructions, while consultations were being made. However, the Complainant was nowhere to be seen after and all attempts to contact him failed. The Respondent refers the Court to the e-1nail correspondence sent by the Human Resources Musonda (exhibit PS1). The Respondent deposes that the Complainant had continued to be absent from work from 2nd February, 2012 to 8th February, 2012 without official leave from Respondent and the Respondent verily believed that the Complainant had commenced working for another con1pany and Napsa contributions for the Complainant n1ade by other co1npany are produced in Court as exhibit II SP2' and II SP3'. JS Therefore, the Respondent dee1ned the Complainant to have deserted employment and dismissed him as per letter of dismissal the same is exhibit "SP4'. The Respondent, further deposes that the Complainant's letter of dismissal from employn1ent was delivered to his home of residence and a copy of the same to Labour Office. The Respondent, contends that the C01nplainant did not complain about his alleged suspension nor non payment of his salary for two years by the Respondent. There is an affidavit in Reply filed by the Complainant on 12 th January, 2015 . The Complainant in the said affidavit denies that his services were terminated on 8th February, 2012 but that it was on 8 th January, 2012. The Complainant also deposes that contrary to the Respondent's deposition, he never deserted work but was advised by the predecessor of Mr. Nzobekea (Shelly Hangili) on 2 nd February, 2012 that according to her, he was not to report for work because he was on suspension and that the letter of suspension was going to follow later. The Complainant maintains that the said letter was never serv.ed on him, neither the letter i I I I I I I I I of dismissal. The Complainant was his only witness for his case and the Respondent called one witness hereinafter referred to as "RWl". • J6 The Complainant told the Court in his oral testimony that he was working as Storeman in the Respondent's Roads Department between Nove1nber, 2011 and pt January, 2012 when he was transferred to Mining Division in the same capacity, by the Maintenance Manager, Jan Boshoff. The Cmnplainant reported and started worldng in the Mining Division, then he was approached by Jan Boshoft when advised him to report back to the Roads Department. However, when Complainant reported to Jan Boshoff's office, h e chased him saying that he did not want to see him. The Complainant requested Jan Boshoff to at least give him a letter to support his order to go back or stay at home, but Jan Boshoff told hin1 that he was not interes ted. The Complainant then went and reported to the Human Resources and Human Resources Officer Shelly Hangili who advised Complainant to be reporting to her. According to Complainant, he complied with the said instruction, but on 30th January, 2012 his salary did not come through into his Bank account. When Complainant asked Shelly Hangili for the reason when his salary was not paid, she expressed ignorance. The Complainant then reported the n1atter to the Senior Human Resources Officer one Boniface Mutumbwe. A meeting was called at Roads Department, attended by Jan Boshoff, Shelly Hangili, Robby Scott the Operations Manager, Boniface Mutumbwe and Complainant. The reason for non*pay111ent of Complainant's salary was not given by Shelly Hangili nor Boshoff, therefore, it was decided by Boniface Mutumbwe that Con1plainant travels to Ndola and collect the salary. The Complainant told the Court that he travelled that very day afternoon to Ndola and 1nanagecl to collect the salary. J7 l I I I I I I I I i I i I I I I I I I I I I I I I I I I I I . I ......... - - - - - - ---7 I I I I I The Coa1plainant in response to the Respondent's allegation that he had disappeared when he was asked to wait for further instructions told the Court that he did not disappear, he had authority of the Respondent to go to Ndola to collect his salary. Further that it is not true that he had started work with BHL Company contrary to what is stated in the letter dated 5thJanuary, 2012. Complainant testified that on 2nd February, 20.12, he reported back for work in the afternoon shift and went to Shelly Hangili and informed her • of how he moved, then he was informed that he was suspended and the letter was going to follow later. According to C01nplainant he continued to fallow up the matter with Shelly Hangili and she informed him that she needed time and that she was going to advise. Complainant explained that after s01ne time, he could not access the office of the Human Resources because he could not access the nline premises as his entry was blocked. When Complainant managed to call the Human Resource Department through security guard at the gate, the person who responded told him that he did not know the case he was talking about. When Con1plainant called Boniface Mutumbwe, he told him that he had nothing to with the case. 1h On 11 August, 2014 the Complainant reported the n1atter to the Labour Office at Solwezi, and he was surprised when he was shown letter of dismis_sal by the Labour Officer. J8 -7 I I I I I I I I I I I I I I I In cross-exa1nination, Complainant testified that Eoshoff chased him fr01n the office and when he reported to the Human Resources Officer, Shelly Hangili, also that he continued to report there until his salary was found not to have reached his account. Therefore, Complainant was told that he was suspended by Shelly Hangili, when he reported back for work after the trip to Ndola to collect the salary. The Complainant agreed that he waited for more than two years and believed that he was on suspension before he came to learn that in fact he had been dismissed fron1 e1nploy1nent in January, 2012 . The Complainant denied having joined EHL Company in January, 2012 but admitted having done so, in September, 2012. Complainant explained that whereas he believed he was an employee of the Respondent whilst on suspension he joined another Company EHL because of hunger. Respondent's only witness was Maxwell Banda (RWl) a Human Resources Superintendent in the Respondent's Company . RWl knew Complainant as a person who was once employed by the Respondent herein, on 20th November, 2010 on permanent and pensionable basis. The gist of RWl 's testimony is that Complainant's employment was terminated by the Respondent through desertion fron1 e1nployment. • • J9 r According to RWl the Complainant had deserted work for five days. RvVl referred the Court to exhibit "SP4', letter of termination of en1ployment, and told the Court that the Complainant had deserted work fro1n 2nd February, 2012 to 8th February, 2012. RWl told the Court that what appears in the letter of tennination that the Complainant deserted employment from 2nd February, to 8th January, 2012 is a typographical error. ,, \ RWl explained that the error is justified because as at 8th January, 2012 the Complainant was still in e1nployment such that he was even paid in the said n1onth, further that the 'date stamp' on the letter clearly shows that it was 111ade in February, 2012. In addition, the copy of the said letter was served on the Labour Officer. RWl testified that, it is not true that the Complainant was verbally suspended from work, according to him the Respondent always writes to the employee who is being suspended. As regards the fact that the Complainant had joined another company (BHL) in September, 2012, RWl, told the Court that the Complainant was not their employee by that time. RWl explained in reference to exhibit SPl that Boniface Mutumbwe wrote to Shelly, clearly showing that the Complainant was not terminated but was directed to be reporting the Human Resources for shift purposes until further notice. J 10 l I I I I I I I I I ' I I I I I I I I I I I I I I I I In cross-examination, RWl admitted that when the events which are subject of the matter herein took place, he was not in e1nployment with the Respondent, therefore, whatever he told the Court came to his knowledge through documents. The person who dealt with the Complainant one Shelly Musonda Hangili is no longer in the Respondent's employment. Equally Jan Boshoff the Maintenance Manager is no longer in employment with the Respondent. • RWl was referred to paragraph 6 of the Respondent's affidavit in support of the Answer, the said paragraph states: ..... the Respondent will aver that between December, 2011 and January, 2012, the Complainant was temporarily sent home by his supervisor namely Jan Basho{{ for poor work performance. RWl told the Court that he did not know for how long the Complainant was sent home, but that he was not paid for two months, that is December, 2011 and January, 2012. RWl admitted that there was no letter in respect to the sending of the Complainant home by the Maintenance Manager (Boshoff). RWl admitted • that the Complainant was sent back home from work verbally. RWl admitted also that under the Disciplinary Code of the Respondent an employee accused of poor perforn1ance should be discharged and undergoes disciplinary hearing. RWl also admitted that it was not correct to send the Complainant home without a charge or letter. Jll RWl admitted further that the Respondent did not try to contact the Complainant at his address of residence. Considering the evidence adduced both by the Complainant and the Respondent, this Court is called upon to determine whether or not the Complainant was properly terminated from employment with the Respondent and what is the effect of the Complainant's own admission that indeed in September, 2012 the period he believed was on suspension but in the en1ploy of the Respondent got employed by another company nan1ely BHL. Both Learned Counsel for the Complainant and the Respondent filed written submissions and I am greatly indebted to them. It is imperative to appreciate at the outset that the burden of proof lies on the Complainant to prove his case on the balance of probabilities. This principle has been emphasised by the Supre1ne Court in the case of Wilson Masautso Zulu v Avondale Housing Project1 wherein it was held I I I I I I I I I I I I I I I I I I I I I I I I I • that:- • Where a plaintiff alleges that he has been wrongly or unfairly dismissed, as indeed in any other case where he makes an allegation, it is for him to prove those allegations. A plaintiff who has failed to prove his case cannot be entitled to a judgment whatever may be said of the opponent's case. It appears from the facts of this case that the issue at hand revolves around whether or not the Complainant deserted his work. The Respondent contends that it terminated the Complainant's e1nployment Jl2 l I I I I I I I I I I I I I I I I I I I I I I because he deserted work and to that effect it has called evidence which I have to critically analyse. Firstly, the Respondent relies on the cormnunication via e-mails of Shelly Musonda, (Human Resources Officer) and Boniface Mutumbwe (Human Resources Superintendent), Jan Boshoff and copied to Rob Scott. On 2nd February, 2012, Shelly wrote to the aforesaid persons:- Following the sitting we had concerning Webster Mulemena on Tuesday 3F1 January, 2012, Kindly find the attached letter of exculpation · (the underline is for the Court and only for emphasis). Furthermore, I wish to bring this to your attention that he has never reported for work even after having that sitting, today makes it the second day. The same day 2nd February, 2012, Boniface Mutumbwe (Human Resources Superintendent) responds to Shelly's e-mail:- Hi Shelly, This ;s fine with me. If the employee is not at work, he is simply providing himself with enough rope . It would be useful to get the minutes of the proceedings ready. (underlining is for the Court and is only for e1nphasis). The following points should come out discernibly: 1. Employee has not been terminated, hence his still being on payroll 2. Going forward, the employee was directed to be reporting to th? Human Resource Officer for shift purposes until further notice. J13 • • Please get the minutes signed by relevant parties, including the Union representative. Sight should not be lost that the correspondences alluded to herein above were preceded or came after the agreed fact that the Complainant was sent h01ne between Dece111ber, 2011 and 30 th January, 2012 by his supervisor one Jan Boshoff for poor performance and the Co1nplainant was not paid his January, 2012 salary. It is also an agreed fact that, non-payment of Complainant's sala.ry in January, 2012 caused the n1eeting of 31 st January, 2012 which Shelly alluded to in her e-mail. It has not been contraverted that the Complainant was advised to go and get his unpaid salary from Ndola and to that effect the Complainant travelled to Ndola. Obviously, as it is stated in Shelly's e-mail, if the meeting to discuss the pay of the Complainant took place on 31 st January, 2012 and he had travelled to Ndola to get his salary and back to Solwezi it would be unreasonable to expect him to be on duty on 1st February, 2012. I also decipher from the correspondence between Shelly and Mutumbwe that whereas the Complainant was sent hon1e by his supervisor on allegations of poor p erfonnance, even after the 1neeting of 3!51 January, 2012, the Complainant was not recalled to perfonn his duties, instead he was instructed to be reporting to the Hun1an Resources officer (Shelly). Further, I doubt the Respondent's avennent in paragraph 9 of the Affidavit in support of the Answer where it is stated that "it was resolved J14 ., I, I I I I I I I I I I I ·I I I i I I I I I • • that the Complainant be paid his January, 20.12 sala1y and be transferred back to, the Security Section where he was earlier based." I doubt the quoted deposition because it is in sharp contrast with the statement of Boniface Mutumbwe that 1 the employee (complainant) was directed to be reporting to the Human Resources officer for shift purposes until further notice. There is no doubt therefore! that the Complainant was still waiting for further instructions from Management · through Human Resources Department. There are also other issues which the Respondent and Complainant did not address at trial, that in fact there was an exculpatory letter which followed after the meeting of 3l51 January, 2012. Further, there were 1ninutes taken in the proceedings of 3!51 January, 2012. The same have not been produced in Court. It is also not in dispute that the sending away of Complainant from work on allegations of poor performance by his supervisor Jan Boshoff was done verbally. RWl admitted that it is contrary to Respondent's disciplinary procedure to suspend the Complainant frmn work verbally . This Court has no difficulty on the facts and evidence in n1aking a finding of fact that Complainant was verbally suspended from work by his supervisor and despite the meeting of 3l51 January, 2012, he was not recalled to resume his norn1al duties but to be reporting to the Human Resources Officer who in due course also verbally advised him to stay home until further notice. JIS • • I I I I I I I I I I I I _ I The other piece of evidence to apply one's mind is the letter of termination of e1nploy1nent (Exhibit SP4 in the Respondent's affidavit). The said letter is dated 8 th January, 2012 and it reads in the body of the same letter that "our records show that you have been absent from work without permission from 2nd February, 20.l 2 to 8th January, 2012." RWl in his testimony told the Court that the date 8 th January, 2012, was a typographical error, because by that time the Complainant was sHll in • employment of the Respondent. It is difficult to believe the Respondent's explanation that the date 8 th January, 2012 is a typographical error in the light of the fact that during the same time the Complainant had been sent away fron1 work without a charge or a letter of suspension. Further, the Complainant was denied the January, 2012 salary, until he lodged a grievance. There is also failure on the part of the Respondent to charge the Complainant with an offence of absenteeism fron1 work. This Court cannot accept the Respondent's explanation that the Complainant was nowhere to be seen when at the san1e time admits during trial that it did not attempt to serve any charge at his place of residence. • I have also critically looked at the defence raised by the Respondent that the Complainant had deserted work and had started work with a different company nan1ely BHL. The evidence relied on by the Respondent is exhibit "PS2' the san1e is a letter of offer of employ1nent address to the Complainant, dated 5th January, 2012. As alluded to I I I I I I I I I I I I I I I herein above and admitted by RWJ. during trial, at that tilne the Complainant was still an employee of the Respondent, hence the resolution to pay him the January, 2012 salary. However, I am mindful that the Complainant admitted having gotten employed by BHL in September, 2012. The issue of Complainant getting employed by another company BHL, shall be addressed later in this judgment. • This Court is mindful in examining the evidence, of the guidance of the Supreme Court in the case of Zesco v David Lubasi Muyambango2 where it h eld that: It is not the function of the Court to interpose itself as an appellate tribunal within the domestic disciplinary procedures to review that others have done. The duty of the court is to examine if there was the necessary disciplinary powers and if it was exercised in due form. Learned Counsel for the Respondent has submitted that the Complainant I I I I I I I I I I I I I I was dismissed without being charged and heard nor going through the • Respondent's process. However as shown by exhibit "PS1", it is evident - that the Complainant was not at work between 2nd February, 2012 and 8 th February, 2012. I do not agree with the contents of exhibit "PS1" in as far as the same is called to show that the Con1plainant was not on duty on 1st and 2nd February, 2012, as there is evidence that the Co1nplainant was allowed in a 1neeting of 3P1 January, 2012, to go to Nclola to get his January, 2012 salary. Further, Learned Counsel for the Respondent has submitted on reliance in the holding in the case of National Breweries v Phillip Mwenya3 and the holding in the case of Zambia National Provident Fund v Chirwa4 that: Where an employee has committed an offence for which he can be dismissed, no injustice arises for failure to comply with the procedure in the contract as such an employee has no claim on that ground for wrongful dismissal or a declaration that the dismissal is a nullity . Indeed the above holding is the position of the law, however in the case in casu, the facts and evidence clearly show that the Respondent violated its own disciplinary procedure, though the same has not been produced. RvVl admitted that the sending away of the Complainant home by his supervisor without a letter or a charge was done in violation of the Respondent's procedure. • In view of the evidence adduced in this case I have come to the conclusion that the Respondent did not exercise its disciplinary power against the Complainant in due form. I therefore, find and hold that the Complainant was wrongfully and unfairly dismissed fro1n employn1ent. The Complainant has proved his complaint against the Respondent on • the balance of probabilities. The Con1plainant has prayed for an order of reinstatement, however, the case of ANZ Grindlays bank (Z) Limited v Kaona5 that, orders for reinstatement are made only in exceptional cases. I therefore do not see anything exceptional in the case herein. The C01nplainant is also seeking damages for wrongful dismissal calculated at 24 n1onths salary. Learned Counsel for the Complainant has subn1itted that the C0111plainant is entitled to such a claim and refers the Court to the learned authors of Selwyn's Law of Employment 15th Edition at page 394, where it states as follows: The principle in contract law is that the purpose of damages is to put the innocent party in the position in which he would have been had the contractual obligations been performed in so far as it is possible ,to do this by monetary award. I have carefully applied my mind to the facts of the case and I am alive to the fact that the Complainant had found employment in September, 2012, the said being the position goes to the mitigation of damages. The Complainant had ren1ained unemployed only from February, 2012 to August, 2012. I therefore award Complainant seven (7) months salary inclusive of taxable allowances as damages for wrongful and unfair dismissal from employment. The Complainant is awarded interest on the amount that will be found payable to him at the current lending Bank of Zambia interest rate from the date of complaint to date of payment. Costs to the Co1nplainant to be taxed in def a ult of agreement. • • I I I I I I i I _...i I • . Informed of Right of Appeal to the Court of Appeal within thirty (30) days of. the date hereof. Delivered at Solwezi this 22ndday of September, 2017. Hon. Justi . Mulenga J DGE • • 120